THANGAMMAL Vs. K DHANALAKSHMI

JUDGEMENT

(1.) This appeal involves an interesting question of law arising out of two inconsistent provisions6 one occurring in the Limitation Act and the other occurring in the Civil Procedure Code. IA. The appellants herein were the judgment debtors in 0. S. No. 244 of 1961. on the file of the Sub Court, Coimbatore. The decree in the said suit was put in execution in ILP.No. 281 of 1977 and the appellants' Properties had been sold in court auction on 21-11:977. for a sum of Rs. 45060. The appeltants came forward with a petition in E. A. No. 202 of 1978 on 24-1-1978 to set aside the sale on depositing the entire decree amount, commission and poundage under 0. 21, Rule 89, C. P. Code.

(2.) The said application for setting aside the sale was opposed by the auction purchaser on the ground that the deposit had been made beyond 30 days from the date of the sale and. therefore. it was, not maintainable. The decree holder however did not file any counter opposing the application. The court below upheld the objection put forward by the auction purchaser that as 'the deposit had not been made within 30 days from the date of the sale as per Order 21. Rule 92 (2) of the application. for setting aside the sale under Or. 21. Rule 89 cannot be maintained. The said decision of the lower court has been challenged in this appeal on the ground that the time for filing an application under Or. 21. Rule 89 having been fixed under Article 127 of the Limitation, Act of 1963. as 60 days and the application for setting aside the sale and the deposit of the amount being within the said 60 days, the court below is in error in dismissing the application as barred by time.

(3.) In this case. the sale took place on 21-12-1977 and the deposit of the entire decree amount, commission and poundage had been made on 23-1-1978 and the application for setting aside the sale has been filed on 24-1-1978. Before the court below the contention on behalf of the auction Purchaser was that not with standing the longer period of limitation fixed under Art. 127 of the Limitation Act for filing an application to set aside the File by a judgment debtor, the deposit has to be made within 30 days as provided under 0. 21, Rule 92 (2) and that as the deposit had not admittedly been made within 30 days from the date of the sale, the application is not maintainable. The Court below took the view that through the filing, of an application to set aside the sale on deposit falls under the purview of 0. 21, Rule 89, Order 21, Rule 92 is the operative provision, that as per Rule 92 (2) which is a mandatory Provision the deposit has to be made within thirty days from the date of the sale, that the provision in Art. 127 of the Limitation Act is a general Provision for filing an application for setting aside the sale under Or. 21. Rules 89. 90 and 91 and that such a general provision cannot nullify the mandatory wo4ision in Rule 92 (2).